NACDL Litigation

National Association of Criminal Defense Lawyers v. Executive Office for United States Attorneys and United States Department of Justice

In December 2012, NACDL filed a Freedom of Information Act (FOIA) request with the Department of Justice (DOJ) seeking the disclosure of the Federal Criminal Discovery Blue Book, which was denied in February 2013, purportedly on various privilege-based and law enforcement grounds. NACDL appealed that denial in April 2013, and was denied again in June 2013. On February 21, 2014, NACDL filed a complaint against the Executive
Office for United States Attorneys and United States Department of
Justice in the U.S. District Court for the District of Columbia.

The Federal Criminal Discovery Blue Book was published by the DOJ's Office of Legal Education, in response to the "egregious misconduct" by the DOJ prosecutors in the case of the late
Senator Ted Stevens, whose conviction was vacated after post-trial
investigations revealed that prosecutors had withheld significant
exculpatory evidence from the defense.

On September 7, 2010, NACDL commenced a lawsuit with the ACLU challenging a U.S. Customs and Border Protection policy that authorizes searches of the contents of travelers’ laptop computers and other electronic storage devices at border crossings, notwithstanding the absence of probable cause, reasonable suspicion or any indicia of wrongdoing. Filed in the Eastern District of New York, the suit seeks to enjoin future enforcement of the policy. NACDL is both a plaintiff and co-counsel in the case, which is currently pending.

Colorado Criminal Defense Bar v. Hickenlooper (Indigent Defense)

Colorado Criminal Defense Bar v. Hickenlooper is an NACDL-supported lawsuit filed in the United States District Court in Colorado in December, 2010, by pro bono counsel at Morrison & Foerster LLP. The lawsuit seeks to invalidate Colorado Revised Statute § 16-7-301(4) which requires a defendant to meet with a prosecutor before being assigned counsel. In Rothgery v. Gillespie County, 554 U.S. 191, 213 (2008), the United States Supreme Court held that a defendant’s right to counsel under the Sixth Amendment to the United States Constitution attaches at “a criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction.”

Colo. Rev. Stat. § 16-7-301(4) provides that, in misdemeanors, petty offenses and traffic offenses an indigent defendant’s “application for appointment of counsel and the payment of the application fee shall be deferred until after the prosecuting attorney has spoken with the defendant”. It then requires the prosecuting attorney to “tell the defendant any offer that can be made based on the facts as known by the prosecuting attorney at that time.” It also permits the prosecuting attorney to “engage in further plea discussions about the case” and charges the prosecutor with advising the defendant that they have “the right to retain counsel or seek appointment of counsel.”

The Colorado Criminal Defense Bar and the Colorado Criminal Justice Reform Coalition allege that the statute violates the Sixth and Fourteenth Amendments to the United States Constitution by deferring the appointment of counsel for indigent criminal defendants until they engage in discussions with prosecuting attorneys regarding potential plea offers.

On February 8, 2007, citing wrongful convictions due
to mistaken eyewitness identification and the urgent need to reform traditional
police eyewitness identification procedures, the National Association of Criminal Defense Lawyers (NACDL), in
conjunction with the MacArthur Justice
Center of the Bluhm Legal Clinic at Northwestern University School of Law, filed
a civil lawsuit against the Illinois police departments who participated in a
controversial study of eyewitnesses and police lineups.

Anderson v. State of Louisiana (Indigent Defense)

Anderson v. Louisiana is an NACDL-supported class action filed in September, 2004, by pro bono counsel at Baker Botts LLP and Sutherland Asbill & Brennan LLP. The suit alleges that deficiencies in the Calcasieu Parish public defense system are so extreme that indigent defendants are being denied their right to counsel as guaranteed by the U.S. and Louisiana Constitutions. The lawsuit alleges that due to substantial under-funding, public defender clients do not have their cases properly investigated, have infrequent communication with their attorneys, and experience extraordinary delays in the processing of their cases. The result is that indigent defendants, innocent until proven guilty, spend months and even years in jail before they are ever given their day in court, with no meaningful legal representation to ensure their rights are upheld. The lawsuit was stayed following Hurricanes Katrina and Rita, and the Louisiana Legislature passed the Louisiana Public Defense Act funding a statewide system of indigent defense. The lawsuit has been revived, however, contending that the state system still does not provide funding sufficient and that denials of the right to counsel persist in Calcasieu Parish.